Roland Routh Windhoek-Oshakati-based Judge Marlene Tommasi this week refused the State to appeal a judgment that set free four people accused of murder and the wholly suspended sentence of three years imposed on one of them for assault with intent to do grievous bodily harm. The State lodged the application to appeal the verdicts after the judge acquitted three police officers and convicted one on the lesser charge of assault with intent to do grievous bodily harm. The State alleged Mordekai Mutilifa, Samoka Sylvester Samoka, Mwetwiilyela Timotheus and Timothy Muyapekwa unlawfully and intentionally killed the deceased, Simvula Albert Simula, on or about March 21, 2011. The State indicated that the four accused assaulted the deceased, resulting in his death soon thereafter. The judge acquitted Samoka, Timotheus and Muyapekwa on the charges, but convicted Mutilifa lesser charge of assault with intent to do grievous bodily harm. He was convicted on the strength of evidence placed before court that he kicked the deceased with booted feet on the chest. The deceased died as a result of blunt force trauma to the abdomen. The State, not satisfied with the judgment, applied for leave to appeal on 20 grounds. Judge Tommasi dissected them one by one and found that none would stand up in a court of appeal. She said the evidence adduced by the State does not support a conviction of murder, but rather one of assault with intent to cause grievous bodily harm, and the only one that assaulted the deceased was Mutilifa. “The State adduced evidence to the effect that the first respondent (Mutilifa) kicked the deceased once and thereafter started resuscitation. There was no further assault perpetrated on the deceased. There was no evidence that the second respondent (Samoka) was in close proximity to the deceased. The State failed to adduce evidence to support an inference that the second respondent could have prevented the assault or that he associated himself with the assault” Judge Tommasi stressed. She said no evidence was produced to indicate that Timotheus and Muyapekwa were part of the assault. They were only part of the team that went looking for the escapees, the judge recounted. According to the ruling, Simula was part of a group detained that night at an open space behind Katima Mulilo police station for “drunkenness”, during a crime prevention operation, when he escaped. After he was re-arrested he became aggressive and Mutilifa kicked him on his chest to get him to behave. The deceased, however, started to have difficulty breathing and Mutilifa gave him mouth-to-mouth resuscitation and he was then taken to hospital, where he was declared dead. Tommasi said the reason she found Mutilifa guilty of assault and not culpable homicide or murder with intent was that Mutilifa could not have foreseen that his assault on the deceased could result in his death, but that he should have foreseen it could cause serious injury. She thus saw no reasonable prospects the State would succeed in showing any misdirection on her part in the trial.
2017-09-15 11:33:12 1 years ago